The Minnesota DWI Case Of The Week is Edwardo Rubio-Galarza v. Commissioner of Public Safety (Decided November 27, 2017, Minnesota Court of Appeals, Unpublished), which stands for the proposition that a person's conduct can constitute a "refusal to submit to testing".
In Rubio-Galazara, the Petitioner was arrested for a DWI on August 14, 2016 by the Prior Lake police. His girlfriend was a passenger in the vehicle and she was cited for minor consumption. The Petitioner became upset that his girlfriend had been issued a citation and repeatedly questioned the officer as to why she was being charged.
At the police station, the Petitioner was read the Minnesota Implied Consent Advisory and Petitioner indicated he understood it. The officer then repeatedly asked the Petitioner if he would submit to a breath test. The officer described Rubio-Galarza as "uncooperative" during this sequence of questioning because he would "try to talk over" the officer and did not provide a straight yes-or-no answer to the officer's repeated question of whether he would submit to a test. At one point, Rubio-Galarza said, "Yes," he would submit to a breath test, "if the officer explained why his girlfriend was being charged. In total, the officer asked Rubio-Galarza whether he would take a breath test approximately 11 times.
The officer explained that he deemed the Petitioner's behavior to be a refusal "because he would not give me a straight answer. I tried to offer him the breath test multiple times, asking him if he would take it, and he repeatedly delayed." The officer agreed that Rubio-Galarza never "specifically said no, I will not take it." When the officer eventually asked Rubio-Galarza why he was "refusing," Rubio-Galarza answered, "I don't have a reason, I just want you to answer me a question. I just want to know why my girlfriend got a ticket."
The officer never initiated the process to start the breath-test machine, nor did he present Rubio-Galarza with the mouthpiece to blow into the machine. About 15 minutes into the exchange with Rubio-Galarza, the officer handed him a notice and order of license revocation. Upon receiving the order, Rubio-Galarza asserted that he had never refused to take the test.
The Petitioner challenged the license revocation arguing that since he never expressly refused to take the test and since the officer never gave him the opportunity to blow into the machine, he did not "refuse" to submit to testing. The district court sustained the revocation and on appeal, the Minnesota Court of Appeals upheld the district court, noting that the courts should employ a "totality of the circumstances test" to determine if a refusal has occurred.
In its opinion, the Appellate Court noted: "Refusal to submit to chemical testing includes any indication of actual unwillingness to participate in the testing process, as determined from the driver's words and actions in light of the totality of the circumstances." State v. Ferrier, 792 N.W.2d 98, 102 (Minn. App. 2010), review denied (Minn. Mar. 15, 2011). Thus, circumstantial evidence can establish unwillingness to take a test even without a direct statement of unwillingness. If a driver commits actions that frustrate the test, the driver is considered to have refused testing."
"Rubio-Galarza argues that he did not refuse, but rather at most withheld consent, and, he asserts, withholding consent is different from refusing under our decision in State v. Netland. We do not read Netland, which examined the constitutionality of Minnesota's criminal-refusal statute, as altering the standard for determining whether a driver refused to submit to testing. The appropriate inquiry remains whether, under the totality of the circumstances, a driver refused testing by words or actions."
"Rubio-Galarza further argues, though, that the totality of the circumstances does not demonstrate refusal because he did not say, "No," and he was not physically given the opportunity to blow into the machine. He contends that "the only way a law enforcement officer can know if a person is refusing when they have not specifically stated so is by starting the test sequence, presenting the mouth piece to the test subject and giving them the opportunity to provide an acceptable sample within the three-minute window permitted by the testing machine." We disagree. Refusal may be determined by words and actions before the machine is started. See, e.g., State v. Collins, 655 N.W.2d 652, 658 (Minn. App. 2003) (upholding refusal when driver was uncooperative during the advisory reading)".
Moral Of The Story: It is easier to just say "no".
If you or a loved one have been arrested for a Minnesota DWI, or are facing a DWI forfeiture of your motor vehicle, feel free to contact Minneapolis DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.